Thursday, January 05, 2006
Shore Thing
From the EPA;
When a shore retreats, the boundaries retreat--regardless of whether the erosion is natural or anthropogenic.374 Were it otherwise, the public trust rights, such as lateral beach access, would be routinely eliminated--even on the ocean shore, where jetties and groins regularly cause pockets of erosion.
From the standpoint of traditional property law, the law of erosion is like the law of defeasible estates, in which title to land changes hands when a specific condition occurs.375 Courts have long dealt with conditional grants in which a landowner conveys a piece of land but only for so long as it is used for a church,376 a park,377 a railroad,378 or a school,379 or until the occurrence of a specified event.380 The law of erosion reaches the same result as would occur if the sovereign had conveyed coastal property only for so long as erosion processes do not submerge it, reserving for the public a reversionary interest that vests when the land is below mean high water.
a.Is the Law of Erosion Symmetric? The natural effect of erosion is to reduce the estate of the dryland owner. A bulkhead shifts the loss onto the tidelands owner. Given that the law of erosion does not allow a riparian owner to expand her holdings by bulkheading and filling seaward, allowing the same owner to retain the saved land by bulkheading and filling landward would be an asymmetry. Similarly, a landowner does not generally lose the right to exclude the public when she lowers dry land to become navigable water.384 It would be asymmetric to allow the landowner to gain the right to exclude the public by elevating dry land so that it does not become navigable water.
The law of erosion is generally symmetric.385 The general principles are that shoreline ownership advances and retreats with the gradual changes of the sea, and those boundaries are not altered by the private activities of a landowner that change the shoreline itself. Even if the equivalence between filling navigable waters and preventing their encroachment by elevating dry land has not been recognized by reported cases, common law courts have the ability to rectify inconsistencies in the law that are brought to their attention.386
When a shore retreats, the boundaries retreat--regardless of whether the erosion is natural or anthropogenic.374 Were it otherwise, the public trust rights, such as lateral beach access, would be routinely eliminated--even on the ocean shore, where jetties and groins regularly cause pockets of erosion.
From the standpoint of traditional property law, the law of erosion is like the law of defeasible estates, in which title to land changes hands when a specific condition occurs.375 Courts have long dealt with conditional grants in which a landowner conveys a piece of land but only for so long as it is used for a church,376 a park,377 a railroad,378 or a school,379 or until the occurrence of a specified event.380 The law of erosion reaches the same result as would occur if the sovereign had conveyed coastal property only for so long as erosion processes do not submerge it, reserving for the public a reversionary interest that vests when the land is below mean high water.
a.Is the Law of Erosion Symmetric? The natural effect of erosion is to reduce the estate of the dryland owner. A bulkhead shifts the loss onto the tidelands owner. Given that the law of erosion does not allow a riparian owner to expand her holdings by bulkheading and filling seaward, allowing the same owner to retain the saved land by bulkheading and filling landward would be an asymmetry. Similarly, a landowner does not generally lose the right to exclude the public when she lowers dry land to become navigable water.384 It would be asymmetric to allow the landowner to gain the right to exclude the public by elevating dry land so that it does not become navigable water.
The law of erosion is generally symmetric.385 The general principles are that shoreline ownership advances and retreats with the gradual changes of the sea, and those boundaries are not altered by the private activities of a landowner that change the shoreline itself. Even if the equivalence between filling navigable waters and preventing their encroachment by elevating dry land has not been recognized by reported cases, common law courts have the ability to rectify inconsistencies in the law that are brought to their attention.386
